Giberti and Rollins and Anor - [2017] FamCA 303

FAMILY COURT OF AUSTRALIA

GIBERTI & ROLLINS AND ANOR

[2017] FamCA 303

FAMILY LAW – CHILDREN – PARENTING – Interim proceedings – Best interests of the child – Where the paternal grandfather seeks orders that he spend time with the child – Where the father supports the orders sought by the paternal grandfather – Where the mother opposes the child spending time with the paternal grandfather – Where the mother alleges that the paternal grandfather poses an unacceptable risk of harm to the child – Where the paternal grandfather is not an unacceptable risk of harm to the child – Where there is insufficient evidence to make an order for the paternal grandfather to spend time with the child – Application dismissed.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Giberti

RESPONDENT:

Mr Rollins

INTERVENOR:

Mr A Rollins

INDEPENDENT CHILDREN’S LAWYER:

Dignan & Hanrahan Solicitors

FILE NUMBER:

PAC

2873

2009

DATE DELIVERED:

15 May 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

6 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT:

AJ Associate Lawyers

SOLICITOR FOR THE INTERVENOR:

Shore Stack Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dignan & Hanrahan Solicitors

Orders

That the intervenor’s application for interim parenting orders in his Response to an Initiating Application filed 29 September 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Giberti & Rollins and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2873 of 2009

Ms Giberti

Applicant

And

Mr Rollins

First Respondent

And

Mr A Rollins
Second Respondent

REASONS FOR JUDGMENT

Introduction

B (“the child”) is a boy of nine who has an autism spectrum disorder. His parents who separated in about March 2009 after a relationship of some years have been involved in a protracted parenting dispute for much of the child’s life.
Final orders in relation to the child’s parenting were made in the Federal Magistrates Court as it was then known in September 2012. Pursuant to these orders the child lived with his mother during the week and with his father on weekends.
In August 2016 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FamCA 303
Decision Date: 15 May 2017

CaseChat Overview and Summary

The case of *Giberti and Rollins and Anor* concerned an application for interim parenting orders brought by an intervenor in proceedings before Hannam J of the Federal Circuit Court of Australia. The intervenor sought these orders in his Response to an Initiating Application filed on 29 September 2016.

The central legal issue before the court was whether the intervenor had established a sufficient basis to warrant the making of interim parenting orders in his favour. This required the court to consider the intervenor's standing and the merits of his application in the context of existing parenting proceedings.

Hannam J dismissed the intervenor's application for interim parenting orders. The court's reasoning, though not detailed in the provided text, led to the conclusion that the intervenor had not met the threshold for the grant of such orders at this interim stage. Consequently, the application was dismissed.

Orders

Orders of the court

That the intervenor’s application for interim parenting orders in his Response to an Initiating Application filed 29 September 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.